Carter v. Rudinplay, Inc.

TONJA B. CARTER, in her capacity as Personal Representative of the ESTATE OF NELLE HARPER LEE, Plaintiff,v.RUDINPLAY, INC., Defendant.

ORDER

WILLIAM H. STEELE, UNITED STATES DISTRICT JUDGE

This
matter comes before the Court on defendant's Motion to
Dismiss for Lack of Personal Jurisdiction or, in the
Alternative, to Transfer Venue (doc. 13). The Motion has been
extensively briefed, and is now ripe for
disposition.[1] Also pending is Plaintiff's Motion to
Strike (doc. 29).[2]

I.
Background.

On
March 13, 2018, plaintiff, Tonja B. Carter, in her capacity
as Personal Representative of the Estate of Nelle Harper Lee,
filed a Complaint (doc. 1) seeking declaratory judgment
against defendant, Rudinplay, Inc. Carter filed an Amended
Complaint (doc. 12) as of right on April 6, 2018.
Well-pleaded allegations of the Amended Complaint reflect
that Nelle Harper Lee, author of the well-known novel To
Kill a Mockingbird (the “Novel”), was a
citizen of Monroe County, Alabama, at all relevant times
until her death on February 19, 2016, and that Carter is a
citizen of Monroe County, Alabama. (Doc. 12, ¶¶
1-2.) The Amended Complaint identifies Rudinplay as a New
York-based theater production company whose principal is
Scott Rudin. (Id., ¶ 3.)

The
Amended Complaint relates to a contract (the
“Agreement”) entered into between Lee and
Rudinplay on June 29, 2015. (Id., ¶ 9.) By the
terms of the Agreement, Rudinplay agreed to pay Lee the sum
of $100, 000 in exchange for the right to adapt the Novel
into a stage play (the “Play”). (Id.,
¶ 13.) The parties' dispute centers on Paragraph 12
of the Agreement, which provides in relevant part that
“the Play shall not derogate or depart in any manner
from the spirit of the Novel nor alter its characters.”
(Doc. 12, Exh. A, ¶ 12.) Carter, as Personal
Representative of Lee's Estate, seeks a declaratory
judgment that the Play developed and produced by Rudinplay
violates Paragraph 12 in three specific respects, to-wit: its
depiction of the legal proceedings against Tom Robinson and
its alteration of the characters Atticus Finch and Jem Finch.
(Doc. 12, at 13-14.) The core of the parties' dispute is
whether the Play violates Paragraph 12 and, if so, whether
Carter is entitled to any legal or equitable remedy under the
Agreement. Carter seeks a declaratory judgment from this
Court that the Play violates Paragraph 12 in the specified
respects, while Rudinplay denies that any such violation
exists or that the Agreement authorizes the relief sought.

For
purposes of the pending Motion to Dismiss, other relevant
aspects of the Agreement provide as follows: (i) a condition
precedent to Lee's approval of the playwright was that
such playwright must agree to certain requirements and
restrictions on the Play's performances in Alabama,
including “an annual performance of the Play in
Monroeville, AL” and “a restriction against any
license for performance of the Play within sixty (60) miles
of the city limits of Monroeville, AL” (doc. 12, Exh.
A, ¶ 2(a)); (ii) the Play was initially to be staged
“on Broadway or in the West End of London”
(id., ¶ 4); (iii) Lee was to be paid certain
royalties on an ongoing basis for each production of the Play
presented by or under license from Rudinplay (id.,
¶ 5), as well as a share of the proceeds of any sale or
other disposition of subsidiary rights in the Play
(id., ¶ 6), and a share of net profits from the
initial production (id., ¶ 7); (iv) Lee was
granted the right to prior, written approval of the
playwright, the right to review the script of the Play, and
the right to make comments (id., ¶ 12); and (v)
if Lee had concerns with the script, then Rudinplay was to be
given prompt notice and an opportunity to discuss resolution
of same (id.). Rudinplay has now filed a Motion to
Dismiss pursuant to Rule 12(b)(2), Fed.R.Civ.P., or
alternatively, to transfer this action to the U.S. District
Court for the Southern District of New York pursuant to 28
U.S.C. § 1404(a). In support of this Motion, Rudinplay
submits evidence of the following facts: (i) Rudinplay is a
New York-based company with its principal place of business
in New York; (ii) neither Rudinplay nor its principal, Scott
Rudin, has any relationship to or maintains any ongoing
contacts with Alabama; (iii) Rudinplay did not negotiate the
Agreement directly with Lee in Alabama, but instead dealt
with her New York-based attorney and Andrew Nurnberg, her
London-based literary agent; (iv) the Agreement was addressed
to Lee in care of Nurnberg in the United Kingdom; (v)
Rudinplay and its agents did not negotiate with anyone in
Alabama; (vi) Rudinplay paid the requisite $100, 000 to Lee
under the Agreement by mailing a check to Nurnberg in London,
England; (vii) Rudinplay sent the draft script to Nurnberg in
London; (viii) Rudinplay communicated with Nurnberg in London
about the script and the Play in September 2017, and met with
Nurnberg and plaintiff, Carter, in New York in February 2018
to discuss the script; and (ix) the Play is currently set to
premiere in New York on December 13, 2018, and is being
developed, rehearsed and produced entirely in New York. (Doc.
13, at 6-8.) According to defendant, “the only
contact between Rudinplay and Alabama” was a single
brief telephone call between Rudinplay and Carter on
September 25, 2017. (Id. at 2-3.) On that basis,
Rudinplay seeks dismissal of this action for lack of personal
jurisdiction or, alternatively, transfer to the Southern
District of New York.

Carter
has submitted both factual allegations in her Amended
Complaint and affidavits and other exhibits in an effort to
meet her burden of establishing this Court's personal
jurisdiction over Rudinplay. The jurisdictional facts shown
by Carter (construing all reasonable inferences and resolving
all evidentiary conflicts in her favor) include the
following: On October 14, 2013, defendant's agent David
Rogers contacted Carter, who was Lee's attorney and
co-literary agent, at Carter's office in Monroeville,
Alabama via both voicemail and e-mail. (Carter Decl. (doc.
28, Exh. 5), at ¶¶ 3, 4, 7 & Exh. B.) In those
communications, Rogers identified himself as Scott
Rudin's director of development, and wrote, “We are
curious to know who controls dramatic rights for TO KILL A
MOCKINGBIRD, and with whom we might have a conversation about
major stage adaptations.” (Id. at ¶ 7
& Exh. B.)[3] The October 14 e-mail specified that
Rogers had also left Carter “a voicemail at Barnett,
Bugg, Lee & Carter, ” a Monroeville, Alabama law
firm. (Id. at ¶¶ 2, 7 & Exh. B.) On
October 16, 2013, Rogers sent another e-mail to Carter in
Monroeville, Alabama, stating that he “wanted to follow
up” and that “[w]e are eager as ever to hear from
you.” (Id. at ¶ 8 & Exh. C.) An
exchange of multiple e- mails between Carter and Rogers
followed, with Carter identifying the current dramatic rights
holders, and Rogers inquiring, “What if we were
interested in commissioning a new adaptation, would that
conversation begin with you?” (Id. at ¶ 9
& Exh. D.) In response to Rogers' question, Carter
answered affirmatively, then put Rogers in touch with
Carter's “co-agent Andrew Nur[n]berg.”
(Id. at ¶ 9 & Exh. F.) Those overtures by
and communications between Rudinplay's agent and Carter
in Alabama jumpstarted the dialogue that culminated in the
Agreement between Lee and Rudinplay. (Id. at ¶
10.)[4]
The Agreement was signed by Lee in Monroeville, Alabama.
(Id. at ¶ 13.)

Plaintiff's
evidence also shows a series of interactions between
Rudinplay's principal, Scott Rudin, and Carter after
dissemination of a draft script. On September 25, 2017, Rudin
contacted Carter telephonically in Monroeville, Alabama, to
discuss her initial reaction to the script. During the
ensuing 30-minute conversation, Carter expressed reservations
to Rudin that the script altered certain characters
(including Atticus Finch) and was not consistent with 1930s
small-town Alabama. (Id. at ¶
17.)[5]
Rudin reassured Carter that he would address those concerns
to make sure the Estate would be satisfied with the final
product. (Id.) Months later, on February 16, 2018,
Carter participated in an in-person meeting with Rudin in New
York to air her concerns about the latest version of the
script, particularly those pertaining to alleged alteration
of characters (Atticus Finch and Jem Finch), alteration of
the story as to the legal proceedings against Tom Robinson,
and failure to depict fairly 1930s small-town Alabama.
(Id. at ¶ 19.) Rudin was not receptive to
Carter's critique. (Id.) Discussions between
Carter and Rudinplay escalated in the form of an exchange of
letters in early March 2018. (Id. at ¶¶
20-21.) In particular, on March 5, 2018, Carter sent a
lengthy letter to Rudinplay in New York from her office in
Alabama chronicling her dissatisfactions with the script and
her contention that it violated Paragraph 12 of the Agreement
in numerous ways. (Id. at ¶ 20.) On March 9,
2018, Rudinplay's New York counsel sent a letter to
Carter's Monroeville, Alabama address responding to her
expressions of concern, indicating that Rudinplay
“wants to work with the Estate of Harper Lee, as
appropriate, regarding this project, ” emphasizing that
it was “no longer possible” to make extensive
changes to the script, and proposing another in-person
meeting in New York because Rudin's schedule precluded
him from travelling to Monroeville. (Id. at ¶
21 & Exh. G.) Four days later, Carter filed her Complaint
in this District Court seeking a declaratory judgment that
the Play violates Paragraph 12 of the Agreement.

2.
Minimum Contacts and Due Process.

It is
well settled that “Alabama's long-arm statute
permits the exercise of personal jurisdiction to the fullest
extent constitutionally permissible.” Sloss
Industries Corp. v. Eurisol, 488 F.3d 922, 925
(11th Cir. 2007). Therefore, the critical question
for purposes of the pending Rule 12(b)(2) Motion is whether
the exercise of personal jurisdiction over Rudinplay here
would comport with due process guarantees. Carter's
position is that due process permits the exercise of personal
jurisdiction over Rudinplay on a specific jurisdiction
theory. “Specific jurisdiction refers to jurisdiction
over causes of action rising from or related to a
defendant's actions within the forum.” PVC
Windoors, 598 F.3d at 808 (citation and internal
quotation marks omitted). Specific jurisdiction is
appropriate if “the defendant's suit-related
conduct … create[s] a substantial connection with the
forum State.” Walden v. Fiore, 134 S.Ct. 1115,
1121, 188 L.Ed.2d 12 (2014). “In specific personal
jurisdiction cases, we apply the three-part due process test,
which examines: (1) whether the plaintiff's claims
‘arise out of or relate to' at least one of the
defendant's contacts with the forum; (2) whether the
nonresident defendant ‘purposefully availed'
himself of the privilege of conducting activities within the
forum state, thus invoking the benefit of the forum
state's laws; and (3) whether the exercise of personal
jurisdiction comports with ‘traditional notions of fair
play and substantial justice.'” Luis
Vuitton, 736 F.3d at 1355 (citations omitted). Carter
bears the burden of establishing each of the first two
prongs, after which Rudinplay must make a “compelling
case” that exercising jurisdiction would violate
traditional notions of fair play and substantial justice.
Id.

As
noted, the first prong of the specific jurisdiction analysis
examines whether the plaintiff's claims arise out of or
relate to the defendant's forum contacts. See Louis
Vuitton, 736 F.3d at 1355 (“A fundamental element
of the specific jurisdiction calculus is that plaintiff's
claim must arise out of or relate to at least one of the
defendant's contacts with the forum.”) (citation
and internal marks omitted). This inquiry “must focus
on the direct causal relationship between the defendant, the
forum, and the litigation.” Id. at 1355-56
(citations omitted). It cannot reasonably be disputed that
Carter's claims arise out of Rudinplay's contacts
with Alabama. After all, those Alabama contacts include
Rudinplay reaching out to Harper Lee's attorney in
Alabama about adapting the Novel into a play, entering into
an agreement with Lee about such a stage adaptation, and
having communications with the Estate's attorney (Carter)
in Alabama concerning the implementation of that agreement.
The claims presented by Carter against Rudinplay in the
Amended Complaint plainly satisfy the “arising out
of” or relatedness prong, and the requisite
relationship among Rudinplay, Alabama, and Carter's
Amended Complaint is easily demonstrated. Defendant does not
argue otherwise. The first prong is satisfied.

At the
heart of the parties' jurisdictional dispute is the
second prong of the due process test for specific
jurisdiction, which requires Carter to show that Rudinplay
purposefully availed itself of the privilege of conducting
activities in Alabama, thus invoking the benefit of
Alabama's laws. The traditional test for purposeful
availment, which applies here, focuses on whether the
defendant has minimum contacts with the forum state. See,
e.g., Luis Vuitton, 736 F.3d at 1357 (describing and
applying “the traditional minimum contacts test for
purposeful availment applicable in contract and tort cases
alike”). This test looks to whether the nonresident
defendant's contacts with the forum state “(1) are
related to the plaintiff's cause of action; (2) involve
some act by which the defendant purposefully availed himself
of the privileges of doing business within the forum; and (3)
are such that the defendant should reasonably anticipate
being haled into court in the forum.” Id.
(citation omitted). “[W]hen inspecting a contractual
relationship for minimum contacts, we follow a ‘highly
realistic approach' that focuses on the substance of the
transaction: prior negotiations, contemplated future
consequences, the terms of the contract, and the actual
course of dealing.” Diamond Crystal, 593 F.3d
at 1268 (citation omitted).[6]

Utilizing
the Eleventh Circuit's “highly realistic approach,
” the Court readily concludes that Rudinplay had
sufficient minimum contacts with Alabama to satisfy the
purposeful availment prong. A critical fact - conspicuously
omitted from defendant's Rule 12(b)(2) Motion - is that
Rudinplay initiated contact with Harper Lee's
representatives in Alabama via a series of persistent
communications (electronic and voice) in October 2013.
Indeed, Rudinplay deliberately reached out to Lee's
personal counsel in Alabama in a targeted manner for the
purpose of soliciting a continuing business relationship with
Lee in Alabama. That fact alone weighs heavily in favor of a
finding of purposeful availment.[7] As for contemplated future
consequences of the contract, contrary to defendant's
unsupported characterization, Rudinplay and Lee did not enter
into “an isolated transaction for a one-time grant of
rights.” (Doc. 13, at 13, 15.) Rather, as reflected in
both the terms of the Agreement and the parties'
discussions relating to same, both sides anticipated an
ongoing business relationship spanning a period of years
relating to the adaptation of the Novel into a play,
including, inter alia, (i) Lee designating Rudinplay
as her sole and exclusive agent for a 12-month period to
procure a playwright for such adaptation; (ii) Lee's
right to approve or reject the playwright selected by
Rudinplay; (iii) Rudinplay having a 24-month option to
produce an initial first-class production of the Play on
Broadway or in the West End of London; (iv) Rudinplay paying
certain royalties and net profits to Lee; (v) Lee having the
right to review and comment on the script; (vi) Lee being
required to notify Rudinplay of concerns that the Play
derogates or departs from the spirit of the Novel or alters
its characters; (vii) Rudinplay being afforded an opportunity
to discuss with Lee any resolution of such concerns; and
(viii) the possibility that Rudinplay would arrange a press
event in Monroeville, Alabama to announce a local
professional presentation of the Play.[8]

Simply
put, the Lee/Rudinplay business relationship was contemplated
by the parties to be a far cry from the “one-shot
operation” at issue in Sea Lift, Inc. v. Refinadora
Costarricense de Petroleo, S.A., 792 F.2d 989, 994
(11th Cir. 1986), to which Rudinplay would liken
this case. (See doc. 13, at 13.) This distinction is
important because Supreme Court teachings confirm that
“with respect to interstate contractual obligations,
… parties who reach out beyond one state and create
continuing relationships and obligations with citizens of
another state are subject to regulation and sanctions in the
other State for the consequences of their activities.”
Burger King v. Rudzewicz, 471 U.S. 462, 473, 105
S.Ct. 2174, 85 L.Ed.2d 528 (1985) (citations and internal
quotation marks omitted). After all, “where individuals
purposefully derive benefit from their interstate activities,
… it may well be unfair to allow them to escape having
to account in other States for consequences that arise
proximately from such activities; the Due Process
Clause may not readily be wielded as a territorial shield to
avoid interstate obligations that have been voluntarily
assumed.” Id. at 474 (emphasis
added and citation omitted). That principle is dispositive of
Rudinplay's jurisdictional argument. Rudinplay reached
out from New York, actively sought out and deliberately
created a continuing business relationship - along with
attendant continuing obligations - with Lee in Alabama for
the purpose of deriving benefit.

Having
intentionally pursued and voluntarily assumed such
obligations in Alabama, Rudinplay cannot utilize the Due
Process Clause to evade ...

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